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MEE Family Law > Ending a Marriage > Flashcards

Ending a Marriage Flashcards

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1
Q

What is an annulment

A

voids a marriage and declares it as having never been valid

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2
Q

What is a void marriage

A

Treats as marriage as never happened, does not need to be judicially dissovled; not legally recognized for any purpose

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3
Q

what voids a marriage

A

prior existing marriage, incest, mental incapacity

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4
Q

what happens with a prior existing marriage

A

the later marriage is void; some states allow the marriage to become valid if one party had a good faith belief that the marriage was valid and the impediment is removed
rebuttable presumption of validity of the latest marriage

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5
Q

What is a voidable marriage

A

valid until a judicial decree dissolves the marriage

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6
Q

what are grounds for a voidable marriage

A

age, impotence, intoxication, fraud, duress, or lack of intent

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7
Q

what are defenses to a void marriage

A

only defense is to deny the existence of the impediment that makes the marriage void; removing the impediment makes the marriage voidable

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8
Q

what are defenses to a voidable marriage

A

equitable defenses of unclean hands, laches, and estoppel

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9
Q

what is the putative marriage/spouse doctrine

A

a party who participated in a ceremonial marriage and beleives in good faith that the marriage is valid may use a state’s divorce provisions even if the marriage is later found to be void

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10
Q

what are the grounds for divorce

A

no fault
fault (adultery, cruelty, desertion, habitual drunkenness, bigamy, imprionment, instituitonalization for insanity)

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11
Q

what is a no fault divorce

A

marriage is irretrievably broken and there is no prospect of reconciliation. irreconcilable differences must exist for a specific period of time prior to the filing of the divorce action

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12
Q

what are fault divorces

A

adultery
cruelty
desertion
habitual drunkenness
bigamy
imprisonment
institutionalization for insanity

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13
Q

adultery

A

must be shown that the spouse had the opportunity and inclination to commit adultery; usually proven by circumstantial evidence

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14
Q

cruelty

A

plaintiffy must demonstrate a course of conduct by the other party that is harmful to the plaintiff’s physical or mental health that makes continued cohabitation between the parties unsafe or improper

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15
Q

desertion

A

results when one spouse voluntarily leaves the marital home with the intent to remain apart on a permanent basis; does not apply if the parties separate by mutual consent

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16
Q

habitual drunkenness

A

frequent intoxication that impairs the marital relationship

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17
Q

bigamy

A

when one party knowingly entered into a prior legal and existing marriage before entering into the current marriage

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18
Q

imprisonment

A

of one spouse for a specified period of time

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19
Q

institutionalization for insanity

A

with no reasonable prospect of discharge or rehabilitation

20
Q

defenses to fault based divorce

A

recrimination, unclean hands, connivance, condonation, collusion, provocation, insanity, consent, justification, religion
must be affirmatively pleaded

21
Q

recrimination and unclean hands

A

both spouses have committed a marital wrongdoing of like conduct (mostly seen in desertion, adultery, cruelty)

22
Q

connivance

A

consent to or participation in the marital wrong (usually adultery; ex. allowing or benefiting from spouses prostitution)

23
Q

condonation

A

forgiveness of spouse
must be knowledge and forgiveness of misconduct and party assumes marital relations with guilty party

24
Q

collusion

A

both spouses conspired to fabricate grounds for divorce

25
Q

provocation

A

misconduct is provoked by moving party

26
Q

insanity

A

valid defense when one spouse doesn’t know difference between right and wrong or lacks the ability to understand that an act is wrongful

27
Q

consent

A

defense to desertion or adultery

28
Q

justification

A

may be established if one party left the home because of the other’s misconduct (defense to desertion)

29
Q

religion

A

fails in all jurisdictions

30
Q

ways that court distributes property at the end of marriage

A

community property and equitable distribution

31
Q

community property

A

most states require equal division of marital property

32
Q

equitable distribution

A

fair distribution of marital property, not necessarily an equal division

33
Q

what is marital property

A

most states say that it is all property acquired during marriage

34
Q

what is hotchpot approach

A

states that all property owned by either spouse

35
Q

what is nonmarital property

A

property acquired before the marriage
property excluded by the parties’ valid agreement
property acquired by gift or inheritance (except for gifts between spouses)
any award or settlement paryment received for a cause of action or claim that accrued before the marriage, regardless of when the payment was received

36
Q

factors for distribution of marital property

A

length of marriage
prior marriages
age
health
earnings
earning potential
needs

37
Q

professional licenses/degrees

A

not a property interest, but can affect alimony

38
Q

retirement or pension benefits

A

marital property if acquired during marriage

39
Q

personal injury/workers’ comp

A

some states - if cause of action accrued during marriage, the proceeds or awards are marital property
other states - allocate the proceeds of award between marital property and separate property

40
Q

goodwill

A

reputation and clientele of professional practice is considered marital property

41
Q

accumulated sick and vacation days

A

states split on classification

42
Q

expectancy interest in property

A

not distributable

43
Q

social security benefits

A

not subject to equitable distribution

44
Q

post separation property

A

can be marital property

45
Q

unexercised stock options

A

marital property if acquired during marriage

46
Q

modification of property division

A

not permitted because based on parties’ assets at the time of divorce

47
Q
A

MEE Family Law (6 decks)

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